DISPATCH MANAGEMENT SERVICES (UK) LTD v MR T W DOUGLAS (2) MR J VAUGHAN MS D ERRINGTON-JEFFARES [2001] UKEAT 902_01_0412

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 902_01_0412Case No Appeal No. EAT/902/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DISPATCH MANAGEMENT SERVICES (UK) LTDAPPELLANTMR T W DOUGLAS (2) MR J VAUGHAN MS D ERRINGTON-JEFFARESRESPONDENT
Before
Mr Justice Wall Mrs D M Palmer Mr G H WrightDate 4 December 2001
[1]APPEARANCES For the Appellant MR H S NAHAL (Solicitor) Messrs Herbert Smith Solicitors Exchange House Primrose Street London EC2A 2HS For the Respondents MR D OUDKERK (of Counsel) Instructed By: Mr C Wynn-Evans Messrs Dechert Solicitors 2 Serjeants Inn London EC4Y 1LT MR JUSTICE WALL: In the substantive proceedings before the Employment Tribunal in this case, Mr. T.W. Douglas, Mr. J. Vaughan and Ms D. Errington–Jeffares (the applicants) claim that they were unfairly dismissed by their former employer Dispatch Management Services (UK) Limited (the respondent). The applicants were, respectively, the Director of Human Resources and Communications, the Managing Director, and the Finance Director of the respondent, which is a courier business based in London.[2]The letters terminating the applicants' employment 'with immediate effect' are dated 2 February 2001, and signed by Mr. Bruce Morgan, the chief executive officer of the respondent's United States parent company (DMS Corp). As it happened, the letters identified the wrong company as the employer, and had to be amended. The applicants accept, however, that their dismissals took effect on 8 February 2001.[3]The applicants are represented in these proceedings by Dechert, a large and well-known London firm of solicitors. The respondent is represented by Herbert Smith, also a large and well known London firm of solicitors.[4]The applicants' forms IT1, identifying Mr. Charles Wynn-Evans of Dechert as their solicitor were issued on 28 February 2001. The respondent's forms IT3, denying unfair dismissal, were filed on 26 March 2001. Eight days have been set aside for the hearing, commencing on 21 January 2002.[5]The matter comes before us by way of an interlocutory appeal from one part of the decision of the Chairman of the Employment Tribunal at a directions hearing held at London Central on 5 June 2001, and promulgated on 15 June 2001. The respondent sought to have Dechert dismissed from the proceedings, and for the applicants to be required to obtain different representation. The Chairman refused that application, and the respondent now appeals to this Tribunal. There is a cross-appeal by the applicants against the Chairman's refusal to make an order for costs against the respondent.[6]In a nutshell, the respondent's case is that Dechert, at the instigation and on the instructions of the applicants, acted for the respondent between 4 and 22 January 2001, when its retainer was terminated in circumstances we shall describe. In these circumstances, the respondent argues, Dechert has a palpable conflict of interest: not only is it professionally incorrect for Dechert to act for the applicants in theses proceedings, its conduct in doing so also interferes with the respondent's right to a fair hearing under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). The facts[7]In order to put the appeal in context, it is necessary to identify the salient facts, albeit in outline form only. Deloitte & Touche (Deloittes) were the respondent's accountants. The respondent was operating a deficit. One question exercising the respondent was whether or not the USA parent company, DMS Corp, would be willing / able financially to support the respondent. Another was whether or not Deloittes could prepare financial statements for the respondent on a going concern basis, and if yes, whether the statements should be qualified.[8]By a retainer (set out in a letter of 4 January 2001) Mr. Vaughan and Ms Errington Jeffares, acting on behalf of the respondent and its associated company Dispatch Management Services (Europe) Limited (DMS Europe), retained Dechert to act for the two companies in relation to their position vis a vis DMS Corp.[9]On 4 January 2001, in accordance with its retainer, Dechert wrote a long letter to Moore & Van Allen, American attorneys acting for DMS Corp's US bankers, stating that Dechert had advised the applicants that the respondent could not continue to trade unless it was given assurances by DMS Corp that it would be able to pay all its creditors in the foreseeable future. Amongst the assertions made in the letter were the following:(1) that unless the respondent received a letter of support from the US Banks, the respondent's accounts would need to be qualified; and(2) that unless a response was received by 8 January, the applicants would have to "consider their position and in particular whether it would be appropriate to invite the Banks to appoint an administrative receiver or to petition for the UK Group to be placed into administration".[10]A reply, which is not in our papers, was received before the deadline, and on 12 January 2001 Dechert wrote again to Moore & Van Allen putting forward two alternative solutions to the respondent's financial difficulties, repeating the point that the respondent's accounts had to be filed by the end of January, and that "at this time, only a qualified report can be given by the auditors".[11]On 18 January 2001 Deloittes wrote to Ms Errington-Jeffares suggesting forms of words to be included in the respondent's accounts to cover the financial difficulties in which the respondent found itself.[12]On 19 January 2001, Mr. Morgan was voted off the Board of the respondent by the applicants amongst others. On 22 January 2001, Dechert wrote to Herbert Smith stating that, following its discussions with Moore & Van Allen it was hopeful an appropriate way forward could be negotiated, and that the Board did not intend either to resign or to apply to the court for an administration order. It was also suggested that Mr. Bruce Morgan should stay away from the respondent's London premises.[13]Mr. Morgan did not accept that advice, and struck back. On 22 January 2001 DMS Corp resolved to remove the applicants as directors of the respondent and DMS Europe. They were then suspended, and DMS Corp terminated Dechert's retainer. Summary dismissal followed.[14]Finally on the facts, it is to be observed that the letters terminating the applicants' employment with the respondent all conclude:
'Finally, we would like to remind you that your consultation with Dechert is at your own personal expense'
. As we have already stated, the applicants then instructed Dechert to act for them in their proceedings for unfair dismissal. The approach of the Tribunal[15]Before the Tribunal, the respondent argued that the Tribunal should direct that Dechert cease to act for the applicants. It advanced a number of reasons. These were, in summary: - 1. Members of Dechert were likely to be witnesses in the proceedings. The respondent wished (inter alia) to cross examine the authors of the letters to Moore & Van Allen (identified in paragraphs 9 and 10 above) which, it was asserted had caused considerable damage to DMS Corp. 2. There was a clear conflict of interest and an equally clear breach of Solicitors Code of conduct rules 15.02, 15.04 and 21.12. Dechert had previously acted for the respondent. It had obtained confidential information from the respondent, who was now forced to seek discovery against Dechert, which had refused to hand over its file relating to the 4 January 2001 retainer. 3. Dechert had threatened litigation against the respondent in relation to its fees allegedly due under the 4 January 2001 retainer. We will return to deal with these points, and in particular the alleged breaches of the Solicitors Code of Conduct, later in this judgment.[16]The approach taken by the Chairman of the Tribunal is clearly set out in the extended reasons for his decision:
"1. At the outset of the interlocutory hearing, Mr. Nahal, on behalf of the Respondent, applied for the applicants' solicitors to be dismissed from the case. The Chairman invited him to deal first with whether the Tribunal had to power to make such an order. Mr. Nahal referred to Article 6 of the European Convention on Human Right and to the Tribunal Procedure Rules due to come into effect on 16 July 2001, in particular to the overriding obligation on Tribunals, under those rules, to give such orders as it thinks fit in the interests of justice and a fair hearing, He referred also to the case of Bache v Essex County Council [2000] IRLR 251, CA ( Bache) which he said was to be distinguished as concerned with a friend, not a legal representative. He urged that it would be very odd if there was an absolute rule that a party could choose whomever it wished to represent it. The respondent here, he said, was put in an unfair position, and he thought the applicants might also be in an unfair position. This was not an issue to be left to the Law Society, because it went to the fundamental issue of fairness. 2. The Chairman, having heard Mr. Nahal's submission, refused the application. The case of Bache did not seem to him to be distinguishable as Mr. Nahal argued, In that case the Court Of Appeal held: - Section 6(1) of the Employment Tribunals Act 1996 (the Act) gives a party to Employment Tribunal proceedings an unqualified statutory right to be represented by the person of their choice. Although a Tribunal has power under Rule 9(1) to control the way a representative conducts the case before it, the Tribunal cannot take away the party's right to that representative representing them. Taking into account that decision, the Chairman considered that the Tribunal did not have the power to dismiss the applicants' solicitor from the case."
The Notice of Appeal[17]In its notice of appeal, the respondent argues that on a true interpretation of section 6(1) of the Act, it was an error of law for the Chairman to hold the section rendered the Tribunal powerless to order a party's solicitor to cease to act where there was a conflict of interest. This is so because of the overriding objective under Regulation 10 of the Employment Tribunal Regulations 2001, and the Tribunal's powers under Rules 4 and 11 of the Rules of Procedure. Bache was clearly distinguishable both on the facts and because of its effect, which was merely to hold that a Tribunal cannot compel a party to be unrepresented, and not that the Tribunal cannot in any circumstances intervene in respect of a party's choice of representative. The Act and the Regulations must be read in conjunction with Article 6 of the Convention.[18]Mr. Nahal, accordingly, invited us to set aside the Chairman's order and to order that Dechert cease to act in the extant proceedings before the Tribunal.[19]For the applicants, Mr. Oudkerk's main point on this part of the appeal was that Bache could not be distinguished in the way suggested by Mr. Nahal, and that as a powerful decision of the Court of Appeal it was binding on us and should be followed. The principle[20]On the basis of these arguments, it seemed to us that the first question in the appeal was whether or not the principle laid down by Bache v Essex County Council (Bache) that the Tribunal had no power to interfere with parties' choice of representation was consistent with Article 6 of the Convention and the 'overriding objective' in the Regulations. If it was, then, unless Bache could be distinguished in some way, it seemed to us that the appeal was bound to fail. If there was no power to intervene, it would not matter what the intervention was designed to achieve.[21]The second question was, accordingly, whether or not Bache could be distinguished on the ground that what was being argued for here was not a deprivation of representation, but an enforced change of legal representation based on ethical and professional grounds and the need for there to be a fair hearing within Article 6.[22]This second question inevitably involves a consideration of the merits, and raises a third question namely if the Human Rights Act 1998 requires Bache to be reconsidered, and if there is jurisdiction to intervene as the respondent asks, is this an appropriate case, on the facts, for the Tribunal to intervene and direct Dechert to withdraw?[23]On this analysis of the case, we decided to hear argument on the question of principle first and on the merits second. We did this partly because we were aware that the case is due to be heard for 8 days in January 2002, and we wished to avoid any prospect of the question of representation being remitted to the Tribunal for further consideration. We also noted that Mr. Nahal, in his notice of appeal, invited us, if we were to allow the appeal, to set aside the Chairman's order and substitute our own. Bache v Essex County Council[24]We need to examine both the facts and the judgments in this case in some detail. We take the facts from the headnote. Mrs Bache was a care assistant in the council's social services department. She claimed that she had been constructively and unfairly dismissed. At the hearing before the employment tribunal, Mrs Bache was initially represented by a friend who had also represented her in the disciplinary proceedings. During the course of the hearing, however, the tribunal took the view that he was not conducting the case competently and ruled that he should be removed as her representative. He was allowed to continue to assist her in an advisory capacity but Mrs Bache had to represent herself.[25]The tribunal dismissed the complaint, finding that there was no breach of contract by the council and, therefore, no constructive dismissal. Mrs Bache appealed to the EAT on the ground that the tribunal had improperly ruled that her representative could no longer represent her. The EAT dismissed the appeal, holding that the discretion accorded to a tribunal under rule 9(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 'to conduct the hearing in such manner as it considers most appropriate to the clarification of the issues before it and generally to the just handling of the proceedings', included the power to remove a representative, and the tribunal had exercised that power properly.[26]On appeal to the Court of Appeal, it was submitted for Mrs Bache that a statutory right to be represented by the person of their choice was conferred on applicants before a tribunal by s.6(1) of the Employment Tribunals Act 1996. For the employers, it was submitted that that right was qualified by Regulations which prescribed the procedure to be followed on any appeal, reference or other proceedings before an employment tribunal.[27]The Court of Appeal dismissed Mrs. Bache's appeal on the basis that the Tribunal's decision on unfair dismissal was plainly right, and had not been affected by the difficulties over her representation. However, it held that the employment tribunal had acted outside its powers in dismissing the person chosen by the claimant to represent her on her complaint of unfair dismissal and by directing that she should represent herself.[28]Several passages in the judgments are relevant to the instant case. We have highlighted those passages we feel are of particular relevance by putting them into italics. The leading judgment was given by Peter Gibson LJ. At paragraph 11 of his judgment, when discussing the decision of the EAT, he said this: - "At the full hearing of the appeal before the EAT (Kirkwood J presiding) Mrs Bache was represented by counsel. The EAT dismissed the appeal. In giving the judgment of the EAT Kirkwood J referred to reg. 9(1) of Sch. 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 ('the Procedure Regulations') and said that the discretion of the chairman extended to necessary regulation of the conduct of a representative. He pointed out that the chairman could discourage, disallow even, irrelevant questions and refuse to receive irrelevant matter advanced by the representative. But, he asked, what if the representative persisted with lengthy and irrelevant material or was persistently offensive to witnesses? The judge said that circumstances in which a chairman could properly feel it necessary to disempower entirely a representative must be very rare indeed, but the EAT was satisfied that the power of control, to be exercised judicially and judiciously, was there because of the chairman's duty to control and conduct the proceedings in a fair and businesslike manner. The judge then considered whether the chairman exercised the power properly and said that there was nothing to show that the chairman was manifestly wrong in the way he acted, nor did anything occur in the way in which the chairman exercised his power to lead the EAT to overturn his decision."[29]At paragraph 13, Peter Gibson LJ he poses the two questions which are relevant to the instant appeal: - "(1) Does the tribunal have the power to prevent a representative chosen by a party from acting for that party? (2) If so, was that power exercised properly?"[30]Counsel for the local authority in Bache had argued that there was no true distinction between preventing a representative from asking questions or making submissions on the one hand and preventing the representative from doing more than assisting the party whom he represents to ask questions and make submissions on the other. Peter Gibson LJ did not agree. He said: - " I see no difficulty in drawing a clear distinction. The tribunal in the one case is exercising its undisputed power to control the conduct of the proceedings by the representative so as to confine the representative to what is relevant. In the other case the tribunal is purporting to deprive the party of his statutory right to have the representative of his choice represent him but to reduce that representative to the status of a McKenzie friend. In my judgment, there must be statutory authority if that statutory right is to be cut down , and I cannot find it in reg. 9(1) and (2). To my mind, Mr Roe is right to say that s.6(1) confers an unqualified statutory right. If a party chose to be represented by a solicitor or counsel the tribunal may be able to ensure compliance with its directions by a threat to report the representative to his professional body, but it would not, in my judgment, be possible for the tribunal to direct that the party had to represent himself . Similar considerations apply where a party chooses to be represented by a trade union or employers' association representative. I can see no difference in principle where the party chooses someone else to represent him under s.6(1)(c). I do not see how the tribunal can take away the party's right to that representative representing him. I fully recognise that so to hold could leave tribunals with potentially very difficult situations, as the EAT envisaged, when a representative may try to persist in doing what he has been told not to do. If the representative so acts with the knowledge and approval of the party, that may in an extreme case constitute an abuse of process such as may disentitle the party from relief or from being entitled to defend the proceedings. The conduct may in an extreme case constitute contempt, though the tribunal itself will not be able to punish for contempt but may have to cause contempt proceedings to be instigated (see rule 52.1(2)(a)(iii) in Sch. 1 to the Civil Procedure Rules and Peach Grey & Co v Sommers [1995] IRLR 363). It is perhaps unfortunate that the leave of the tribunal is no longer a requirement for representation by a representative under s.6(1)(c). But that is a matter for Parliament. For these reasons, I would respectfully disagree with the view of the EAT and hold that the tribunal does not have the power to dismiss a representative."[31]Ferris J agreed that there was a clear distinction between the right of a party to proceedings before the tribunal to select a person who is to represent him in those proceedings and the power of the tribunal to regulate the conduct of that representative in the performance of his task. He continued: - "The first matter is governed by s.6(1) of the Employment Tribunal Act 1996, the terms of which my Lord has set out. These give a person appearing before a tribunal the right to be represented by, amongst other persons, 'any other person whom he desires to represent him'. Although the Secretary of State has power to make regulations which include provisions as to the persons entitled to appear and to be heard on behalf of parties to the proceedings, I cannot regard reg. 9(1) and (2) of the Procedure Regulations as doing any such thing. My reasons for this conclusion are those which Peter Gibson LJ has given. It was not suggested that any other regulation has this effect. Section 6(1) therefore stands alone and gives a party an unqualified right, if he so chooses, to be represented not only by a person within para. (a) or (b) of that section but by any other person whom he desires to represent him."[32]Slightly later, Ferris J underlined the point with these words: - "There being a distinction between the two matters which I identified earlier, the answer to the question under consideration must depend on whether the act of the tribunal in this case was one which denied to Mrs Bache her right to be represented by a person of her choice or merely one which controlled the activities of Mr Leggett in acting as her chosen representative. In my judgment, there can be no doubt that it was the first of these. One need look no further than the tribunal's own note of what it did, with its reference to the tribunal agreeing 'to "sack" Leggett'. This it had no power to do, any more than, if Mrs Bache had instructed counsel or a solicitor to represent her, it would have had power to withdraw her instructions from him."[33]In a short judgment, Mummery LJ expressly agreed with both the judgment of Peter Gibson LJ and with the judgment of Ferris J. "Does section 6 of the Employment Tribunals Act 1996, as construed in Bache v Essex County Council operate to disempower an Employment Tribunal from taking away the party's right to that representative representing him?" The Statutory Material[34]Section 6(1) Employment Tribunals Act 1996 (as amended) provides:
"A person may appear before an employment tribunal in person or be represented by – (a) counsel or a solicitor, (b) a representative of a trade union or an employers' association, or (c) any other person whom he desires to represent him."
[35]The Employment Tribunals (Constitution and Rules of Procedure ) Regulations 2001 (in force on 18 April 2001) contain the following regulations relevant to this case:
"10.

(d) ensuring that it is dealt with expeditiously and fairly … "

[36]The Employment Tribunals Rules of Procedure are set out in Schedule 1 to the Regulations. Our attention was drawn to paragraph 4(1), headed Case Management :
"A tribunal may at any time, on the application of a party or of its own motion, give directions on any matter arising in connection with the proceedings as appear to the tribunal to be appropriate."
[37]We were also referred to paragraphs 4(4) and (5) dealing with discovery and the power to require the attendance of any person to give evidence or produce documents, the terms of which we do not think we need to set out. We also noted paragraph 11(1) of Schedule 1, which is in these terms: - "The tribunal shall, so far as appears to it appropriate, seek to avoid formality in its proceeding, and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings."[38]We were shown the origins of section 6 of the Employment Tribunals Act 1996 in Hansard (HL, 8 June 1971, Cols 48 and 49) in which the Minister, Baroness Treedsmuir of Belvelie accepted an amendment in the terms of section 6 moved by Lord Beaumont of Whitley, commenting: 'it has always been the intention of the Secretary of State, in drafting new rules for industrial tribunals, to provide for an unrestricted right of representation in their proceedings'.[39]Finally, we were referred to sections 3 and 6 of the Human Rights Act 1998. The former provides that: - "(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights." Section 61) provides that it is unlawful for a public authority (which includes an Employment Tribunal) to act in a way which is incompatible with a Convention right. The relevant Convention right in this case is Article 6, which, in the relevant part of paragraph 6.1 states: - "In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." The argument[40]Mr. Oudkerk submitted that the Tribunal (and the Employment Appeal Tribunal), which are creatures of Statute, have no power to prevent a representative chosen by a party from acting for that party. At first blush, when section 6 of the Act is considered in the context of Article 6 of the Convention, this appears a somewhat startling proposition. However, we are, having heard argument, satisfied that it is sound, that Bache applies in the instant case, and that there is, accordingly, no error of law in the Chairman's ruling.[41]In order to test the proposition advanced by Mr. Oudkerk, some time was spent in argument looking at examples which were both hypothetical and extreme. Mr. Nahal pointed to the absurdity of the Tribunal being powerless to intervene where the litigant was represented by a child, or a patient under the Mental Health Act; a long term prisoner, an alcoholic or a drug addict. He also said it would be absurd if the only two partners in the same small firm of solicitors, sharing a secretary and with an eye to their profits acted on either side of the same case.[42]A deliberately extreme example put to counsel was that of a representative (identified as a struck off solicitor to avoid any sanction from a professional body) who has advised and taken a proof of evidence from an applicant before the tribunal, thereby gaining a great deal of confidential information about to the applicant which is unknown to the employer. In the example, the applicant cannot afford to pay for representation before the tribunal, and the representative offers his services to the employer, who accepts them. The applicant then appears in person before the Tribunal to find the representative acting for his employer.[43]Mr. Oudkerk argued that the mischief in this, and the other examples was not the question of representation, but of information. The representative in the example set out in paragraph 42 would undoubtedly have passed all the information which he had gathered from the applicant to the employer. The employer would have that information whoever represented the employer before the Tribunal. The statutory right under Article 6, therefore, was not addressed by dismissing the representative, but by the other methods discussed in Bache such as disentitling the defaulting party to relief or from being entitled to defend the proceedings.[44]Mr. Oudkerk pointed to the passage in the judgment of Ferris J in Bache at paragraph 37 (with which the other members of the court agreed) in which the judge had said in terms that section 6(1) stood alone and gave a party an unqualified right, if he so chooses, to be represented not only by a person within paragraph (a) or (b) of that section but by any other person whom he desires to represent him. There was, accordingly, no difference between 'sacking' Mrs. Bache's representative and requiring the applicants to sack Dechert and instruct another solicitor. The tribunal simply lacked the power to do it.[45]Having considered the matter, we agree with Mr. Oudkerk's submission on this part of the case. It is, we think, significant that Peter Gibson LJ discusses the tribunal's powers to deal with improper or inappropriate behaviour in a passage in paragraph 20 of his judgment immediately following his statement that section 6(1) confers an unqualified statutory right. Although we have already set out the passage in question, we repeat it here: - "To my mind, Mr Roe is right to say that s.6(1) confers an unqualified statutory right. If a party chose to be represented by a solicitor or counsel the tribunal may be able to ensure compliance with its directions by a threat to report the representative to his professional body, but it would not, in my judgment, be possible for the tribunal to direct that the party had to represent himself."[46]In our judgment, the thrust of this passage is clear. In the context of the Tribunal's power to intervene over representation, no distinction is to be drawn between cases in which the parties are represented by solicitors or counsel, trade union or employer representatives, or any other person of their choice.[47]The Tribunal is, of course, bound by section 3 of the Human Rights Act 1998 to read and give effect to section 6 of the Employment Tribunals Act 1996 in a way which is compatible with Article 6. The right to a 'fair' hearing is, however, also contained in the Overriding objective in Regulation 10(1), which in turn suffuses the Schedules to the Regulations. We do not see anything inconsistent with Article 6 either in the Employment Tribunals Act or in the Regulations; and reading and giving effect to section 6 of the Employment Tribunals Act 1996 in a way which is compatible with Article 6 of the Convention does not lead us to the conclusion that section 6 is an any way inconsistent with Article 6.[48]To put the matter another way, the right to a fair hearing under Article 6 does not require the Tribunal to read and give effect to section 6 of the Employment Tribunals Act as though it enabled the Tribunal to require a party to dispense with his chosen representative.[49]Bache is, in our judgment, a powerful authority establishing a very important point of principle, as the extract from Hansard demonstrated. It is, of course, binding on us. We must, we think, remember at all times that we are dealing with Employment Tribunals. In our view, the existence of any power to interfere with representation before the Employment Tribunal would require clear statutory authority, and, for the reasons we have given, we do not think this is provided by either the Human Rights Act or the introduction of the Overriding objective. The merits[50]However, in case we are wrong on the point of principle, and there is jurisdiction to require the applicants to terminate their instructions to Dechert, we propose, shortly, to consider the matter on its merits.[51]It is, we think, important to remember what this case is about. It is a case of summary dismissal. The respondent must show that the reason for dismissing the applicants fell within section 98(1) or (2) of the Employment Rights Act 1996. This, as Mr. Oudkerk pointed out, will depend very much upon Mr. Morgan's state of knowledge as at 2 February 2001. It is a narrow issue, and the objections raised by the respondent to Dechert continuing to act in the case must be seen against that background.[52]The second point, which we think of some importance, is that neither the applicants nor Dechert take the view that there is a conflict of interest in this case. Dechert is large and respectable firm of solicitors, who are fully aware that their conduct may be reported to their professional body if it turns out to be improper. In the present context, however, whether or not there is a conflict of interest is, in our view, first and foremost a matter for them. It is not a matter for the tribunal unless it impinges on the proper conduct of the case.[53]Dechert has, furthermore, sought advice on the propriety of its continuing to act from the professional ethics department of the Law Society. Whilst, as Mr. Nahal points out, we have not seen what Dechert told the Law Society, the latter has advised Dechert that rule 15.02 and note 6 to that rule, and 15.04 do not apply in this case.[54]Rule 15.02 of the Code reads: - "If a solicitor or firm of solicitors has acquired relevant confidential information about an existing client or former client during the course of acting for that client, the solicitors or the firm must not accept instructions to act against the client." Note 6 to that rule provides: - "A solicitor who has acted for a company in a particular matter and has also separately acted for directors and shareholders in their personal capacity in the same matter is unlikely to be able to act for either the company or their other parties if litigation ensues between them in respect of that matter." Rule 15.04 reads:
"A solicitor must not act where his or her own interests conflict with the interests of a client or potential client."
Reliance was also placed on rule 21.12 of the Code, which reads: - "A solicitor must not accept instructions to act as advocate for a client if it is clear that he or she or a member of the firm will be called as a witness on behalf of the client, unless the evidence is purely formal."[55]Dechert asserts that it has acquired no confidential information relating to the respondent in its files. The respondent is clearly in a position to see Dechert's file for the period during which it was acting for the respondent. As to the question of partners of Dechert being called as witnesses, Mr. Oudkerk pointed out that – given the limited nature of the issue before the Tribunal, their evidence (if required at all) would be limited. He reminded us that, in proceedings before Tribunals, it was not uncommon for representatives to give evidence. He cited the example of an applicant making a claim of sex discrimination whose complaint was out of time. The reason often given was advice from the representative, and the consequence was that the representative would give evidence to explain the delay. This was part of the informality identified in paragraph 11(1) of Schedule 1 of the Regulations, set out at paragraph 37 above.[56]As to paragraph 21.12 of the Code, Mr. Oudkerk submitted that the applicants would be represented by counsel before the Tribunal: no question of members of Dechert acting as advocate arose.[57]Mr. Nahal took us through the skeleton argument on the merits prepared for the Tribunal. We were not impressed by the points made. We do not think it necessary to go through that document. It suffices, we think, to say that there was nothing in it which, in our view, would materially interfere with a fair hearing of the respondent's defence to the applicants' claims for unfair dismissal and the issues in the case which we have identified.[58]It follows that both on the issue of principle and on the merits, this appeal fails and will be dismissed. The Cross-Appeal[59]The applicants cross-appeal from the Tribunal's refusal to award them their costs of the hearing below. The Chairman did not consider that the respondent had acted unreasonably within what is now Regulation 14 of the Regulations.[60]Unfortunately, because we both reserved our decision and finished the hearing of the appeal late in the afternoon, we did not hear argument on the cross- appeal, or address the issue of costs. Accordingly, if the applicants wish to pursue the cross-appeal, or if any other issue of costs arises, the Employment Appeal Tribunal will need to be reconstituted.[61]All we would wish or can do at this stage is, firstly, to remind the parties of the limited circumstances in which costs are awarded in appeals to the Employment Appeal Tribunal and, secondly, to express the view that if an application is made to reconstitute the EAT for any reason, the fact that the EAT is being reconstituted should not interfere or be seen as a reason for interfering with preparations for the hearing due to start before the Employment Tribunal on 21 January.